Jones v. Thomas/Opinion of the Court

by Anthony Kennedy

After it became apparent that two consecutive sentences had been imposed where state law permitted but one, a Missouri court vacated the shorter of the two and credited the time already served against the remaining sentence. At the time the court entered its order, the prisoner had completed serving the shorter sentence. The question presented is whether the longer sentence can remain in force, consistent with double jeopardy principles.

* Respondent Larry Thomas attempted to rob a St. Louis, Missouri, auto parts store in 1972. Inside the store, respondent drew a gun and announced a holdup. One of the store's customers was armed, and he tried to thwart the robbery. Respondent shot and killed him in an exchange of gunfire. Respondent was convicted in 1973 by a St. Louis Circuit Court jury both of attempted robbery and of first-degree felony murder for killing during the commission of a felony. The trial court sentenced respondent to consecutive terms of 15 years for the attempted robbery and life imprisonment for the felony murder, with the 15-year sentence to run first. The Missouri Court of Appeals affirmed respondent's conviction on direct appeal. State v. Thomas, 522 S.W.2d 74 (Mo.App.1975).

In 1977, respondent sought state postconviction relief, arguing that it was improper for the trial court to impose separate sentences for felony murder and the underlying felony. While respondent's case was pending, the Missouri Supreme Court accepted this argument in unrelated cases, holding that the Missouri Legislature had not intended to allow separate punishments under the felony-murder statute. See State v. Morgan, 612 S.W.2d 1 (1981) (en banc); State v. Olds, 603 S.W.2d 501 (1980) (en banc). ^[1]

In June 1981, with respondent's postconviction motion still pending, the Governor of Missouri commuted his 15-year sentence for attempted robbery to "a term ending June 16, 1981." Respondent remained in prison under the murder sentence. In 1982, the state trial court vacated respondent's attempted robbery conviction and 15-year sentence, holding under Olds, supra, that respondent could not be required to serve both sentences. The Missouri Court of Appeals affirmed the order vacating the sentence, but rejected respondent's argument that he was entitled to immediate release. Respondent had argued that because he had completed the shorter, commuted sentence, his continued confinement under the longer sentence constituted double jeopardy. The Missouri Court noted that respondent was in no way prejudiced by the trial court's ruling, as his entire time of incarceration was credited against the life sentence. Thomas v. State, 665 S.W.2d 621 (1983).

Respondent then sought a writ of habeas corpus in federal court. The United States District Court for the Eastern District of Missouri denied relief, holding that respondent had not suffered a double jeopardy violation because he had not been subjected to greater punishment than intended by the legislature. A three-judge panel of the Eighth Circuit reversed and remanded. 816 F.2d 364 (1987). The majority opinion noted that as a result of the Governor's commutation, respondent had legally satisfied the 15-year sentence. See State v. Cerny, 248 S.W.2d 844 (Mo.1952). It further held that under this Court's decisions in Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872 (1874), and In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943), once respondent completed one of the two sentences that could have been imposed by law, he could not be required to serve any part of the other. The majority went on, however, to hold that the double jeopardy violation could be cured under this Court's decision in Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986), which held that an unlawful conviction of both felony murder and the underlying felony could be remedied by resentencing on a lesser included offense of nonfelony murder. The panel therefore granted a conditional writ, so that respondent could be resentenced for the non-jeopardy-barred offense of nonfelony murder or released.

Judge McMillian concurred in part and dissented in part. He agreed that respondent's double jeopardy rights were violated, but stated that he would not allow resentencing because he preferred the analysis of Justice BRENNAN's dissenting opinion in Mathews. 816 F.2d, at 371. Judge Bowman dissented, concluding that the double jeopardy prohibition against multiple punishments was not violated because respondent would serve time only under the life sentence, which was a single valid punishment intended by the legislature. Judge Bowman joined Judge Hanson, however, in holding that respondent could be resentenced under Mathews.

The Eighth Circuit granted rehearing en banc and ordered respondent's unconditional release. 844 F.2d 1337 (1988). The court held that under Lange, supra, and Bradley, supra, respondent could not be punished further once he had satisfied the sentence for attempted robbery. The court further held that Mathews, supra, was inapplicable because the prisoner in that case had not completed either of his sentences. Four judges dissented. We granted certiorari, 488 U.S. 1003, 109 S.Ct. 781, 102 L.Ed.2d 773 (1989), and now reverse.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." The Clause affords three protections to the criminal defendant. The first two, which are the most familiar, protect against a second prosecution for the same offense after acquittal, and against a second prosecution for the same offense after conviction. See, e.g., Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984). Neither of these protections against successive prosecutions is involved here. Rather, respondent's initial conviction and sentence for both felony murder and the underlying felony violated the third aspect of the Double Jeopardy Clause, the protection against "multiple punishments for the same offense" imposed in a single proceeding. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The constitutional question in this case is what remedy is required to cure the admitted violation.

The answer turns on the interest that the Double Jeopardy Clause seeks to protect. Our cases establish that in the multiple punishments context, that interest is "limited to ensuring that the total punishment did not exceed that authorized by the legislature." United States v. Halper, 490 U.S. 435, 450, 109 S.Ct. 1892, 1903, 104 L.Ed.2d 487 (1989); see Johnson, supra, 467 U.S. at 499, 104 S.Ct., at 2540; Missouri v. Hunter, 459 U.S. 359, 366-367, 103 S.Ct. 673, 678-679, 74 L.Ed.2d 535 (1983). The purpose is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments. See, e.g., Johnson, supra, 467 U.S. at 499, 104 S.Ct., at 2540. In this case, respondent's conviction of both felony murder and attempted robbery gave rise to a double jeopardy claim only because the Missouri Legislature did not intend to allow conviction and punishment for both felony murder and the underlying felony. E.g., Hunter, supra, 459 U.S. at 368, 103 S.Ct., at 679; see also Morgan, supra, 612 S.W.2d, at 1; Olds, supra, 603 S.W.2d, at 510 (construing Missouri statute).

Given that, in its application to the case before us, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended," Hunter, supra, 459 U.S. at 366, 103 S.Ct., at 678, the state-court remedy fully vindicated respondent's double jeopardy rights. The Missouri court vacated the attempted robbery conviction and sentence and credited the time that respondent had served under that conviction against the remaining sentence for felony murder. This remedy of crediting time already served against the sentence that remained in place is consistent with our approach to multiple punishments problems in other contexts. See Pearce, supra, 395 U.S. at 718-719, 89 S.Ct., at 2077-2078 (credit for time served applied on resentencing at second trial following appeal). Respondent now stands convicted of felony murder alone, and his continued confinement under the single sentence imposed for that crime is not double jeopardy. ^[2]

Respondent, as did the Court of Appeals below, relies on this Court's opinions in Lange, supra, and Bradley, supra, for the proposition that the Double Jeopardy Clause requires immediate release for the prisoner who has satisfied the shorter of two consecutive sentences that could not both lawfully be imposed. We think this approach depends on an overly broad reading of those precedents. Lange and Bradley do contain language to the effect that once a defendant "had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone." 18 Wall., at 176. But application of this language to the facts presented here is neither compelled by precedent nor supported by any double jeopardy principle.

In Ex parte Lange, the defendant had been convicted of stealing mail bags, a federal offense punishable by either a $200 fine or a 1-year prison term. The trial court, however, sentenced Lange to a $200 fine and one year in prison. Lange paid the fine and spent five days in prison before seeking a writ of habeas corpus from the trial court. The trial judge then vacated the earlier judgment and sentenced Lange to one year's imprisonment from that date. Lange sought a writ of habeas corpus in this Court, which held that he was entitled to be released. The Court noted that Lange's fine had already passed into the Treasury and could not be returned to him. If the second sentence were enforced, Lange would therefore have aid a $200 fine and spent a year plus five days in prison. See id., at 175. This punishment would obviously have exceeded that authorized by the legislature. Lange therefore stands for the uncontested proposition that the Double Jeopardy Clause prohibits punishment in excess of that authorized by the legislature, see United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.Ct. 426, 438, 66 L.Ed.2d 328 (1980), and not for the broader rule suggested by its dictum.

In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943), provides a closer analogy to this case. The defendant in Bradley was sentenced for contempt to a $500 fine and six months' imprisonment under a statute that provided only for fine or imprisonment. Bradley was taken to prison, and two days later paid the fine. The trial court then realized its mistake, amended its sentencing order by omitting the fine and retaining only the 6-month prison sentence, and instructed the Clerk to return the fine to Bradley's attorney, who refused to accept it. This Court, in a brief opinion citing Lange, held that Bradley was entitled to be released, stating that where "one valid alternative provision of the original sentence has been satisfied, the petitioner is entitled to be freed of further restraint." 318 U.S., at 52, 63 S.Ct., at 471.

Strict application of Bradley would support respondent here. Under this view, satisfaction of one of two alternatives that could lawfully be imposed (e.g., the fine in Bradley and the commuted sentence here) is dispositive, and any attempt to correct the erroneous sentence by repaying the fine or crediting time served would be futile. We think this approach ignores important differences between this case and Bradley. Bradley and Lange both involved alternative punishments that were prescribed by the legislature for a single criminal act. The issue presented here, however, involves separate sentences imposed for what the sentencing court thought to be separately punishable offenses, one far more serious than the other. The alternative sentences in Bradley, moreover, were of a different type, fine and imprisonment. While it would not have been possible to "credit" a fine against time in prison, crediting time served under one sentence against the term of another has long been an accepted practice. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

In a true alternative sentences case such as Bradley, it would be difficult to say that one punishment or the other was intended by the legislature, for the legislature viewed each alternative as appropriate for some cases. But here the legislature plainly intended one of two results for persons who committed murder in the commission of a felony: Either they were to be convicted of felony murder, or they were to be convicted separately of the felony and of nonfelony murder. ^[3] It cannot be suggested seriously that the legislature intended an attempted robbery conviction to suffice as an alternative sanction for murder. The suggestion of Justice Scalia's dissent that the same analysis of legislative intent applies to the $200 fine imposed in Lange, post, at 390, is difficult to understand. By the terms of the statute itself, the legislature in Lange plainly did intend that in some cases the sentencing judge would impose "a mere $200 fine for the gravity of offense at issue there." Ibid.

Justice SCALIA observes that the Double Jeopardy Clause protects not only against punishment in excess of legislative intent, but also against additions to a sentence in a subsequent proceeding that upset a defendant's legitimate expectation of finality. Post, at 393-394. But this case does not present the situation posited by the dissent where a judge imposes only a 15-year sentence under a statute that permitted 15-years to life, has second thoughts after the defendant serves the sentence, and calls him back to impose another 10 years. Post, at 392. Here we must determine whether the resentencing of respondent was indeed the imposition of an additional sentence, or a valid remedy for improper "cumulative sentences imposed in a single trial." Hunter, 459 U.S., at 366, 103 S.Ct., at 678. There can be no doubt it was the latter.

Justice SCALIA's discussion of the defendant's expectation of finality makes no independent contribution to the inquiry, for in the end the dissent's argument boils down to Bradley. Respondent plainly had no expectation of serving only an attempted robbery sentence when he was convicted by the Missouri trial court. Indeed, since Morgan and Olds had not been decided when respondent was sentenced, his expectation at that point was to serve both consecutive sentences. Once it was established that Missouri law would not allow imposition of both sentences, respondent had an expectation in serving "either 15 years (on the one sentence) or life (on the other sentence)." Post, at 395. The dissent rejects our conclusion that the Missouri court's remedy fulfilled that expectation as "ruled out by Bradley." Ibid. But as discussed above, we do not think the law compels application of Bradley beyond its facts. Instead, we believe that the intent of the legislature, which this aspect of the Double Jeop rdy Clause serves to protect, provides the standard for evaluating the Missouri court's remedy for the Clause's violation.

Extension of Bradley to these facts would also lead to anomalous results. Under respondent's theory, for example, everything depends on the order in which the consecutive sentences were originally imposed. Had respondent been sentenced to the life sentence first, he would be serving the very same term, but could advance no double jeopardy claim. There is no indication that the order of the sentences was of the slightest importance to the sentencing judge, and there is no reason constitutional adjudication should turn on such fortuities. Respondent also concedes that where concurrent sentences are imposed, unlawful imposition of two sentences may be cured by vacating the shorter of the two sentences even where it has been completed. See Hardy v. United States, 292 F.2d 192 (CA8 1961); United States v. Leather, 271 F.2d 80 (CA7 1959), cert. denied, 363 U.S. 831, 80 S.Ct. 1602, 4 L.Ed.2d 1525 (1960). Ironically, respondent's argument for immediate release thus depends on the fact that he was given consecutive terms, which are typically reserved for more culpable offenders. We have previously observed that "[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Bozza v. United States, 330 U.S. 160, 166-167, 67 S.Ct. 645, 648-649, 91 L.Ed. 818 (1947). We will not depart from that principle today, and we decline to extend Bradley beyond its facts.

Double jeopardy is an area of the law filled with technical rules, and the protections it affords defendants might at times be perceived as technicalities. This is irrelevant whether ancient and important principles embodied in the Double Jeopardy Clause are implicated. "Violations of the Double Jeopardy Clause are no less serious than violations of other constitutional protections." Mathews, 475 U.S., at 255, 106 S.Ct., at 1042-1043 (BLACKMUN, J., concurring in judgment). But neither the Double Jeopardy Clause nor any other constitutional provision exists to provide unjustified windfalls. The Missouri court's alteration of respondent's sentence to a single term for felony murder with credit for time served provided suitable protection of his double jeopardy rights.

The decision of the Court of Appeals is reversed, and the case is remanded for dismissal of respondent's petition.

It is so ordered.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Notes

1. After the Missouri Supreme Court decided Morgan and Olds, the Missouri Legislature amended the felony murder statute. The statute now provides that punishment may be imposed for both felony murder (now defined as second-degree murder) and the underlying felony. See Mo.Rev.Stat. § 565.021(2) (1986).
2. Even if the Double Jeopardy Clause provided an absolute bar to multiple punishments in a single trial regardless of legislative intent, see Missouri v. Hunter, 459 U.S. 359, 369, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983) (MARSHALL, J., dissenting), the fact would remain that respondent is now serving only a single sentence for a single offense. Under any view of the substantive content of the double jeopardy bar against multiple punishments, respondent has had every benefit the Clause affords.
3. The Court of Appeals' conclusion that the state court could not cure the double jeopardy violation through the alternative procedure approved in Morris v. Mathews, 475 U.S. 237, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986), is therefore difficult to understand. In Mathews, we held that a violation of the double jeopardy rule against multiple punishments for the same offense in successive trials could be cured by resentencing to a lesser included offense that was not jeop rdy barred. In that case, Mathews was first convicted of aggravated robbery. In a separate trial, he was then convicted of felony murder based on the robbery. The second conviction violated the Double Jeopardy Clause. See, e.g., Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam ) (successive prosecutions for felony murder and the underlying felony a double jeopardy violation). Yet Mathews' conviction of felony murder necessarily entailed a jury finding that he was guilty of the lesser included offense of nonfelony murder. Because nonfelony murder is not the "same offense" as aggravated robbery, there was no double jeopardy bar to a successive prosecution for that offense. We therefore held that the violation could be cured by resentencing respondent for nonfelony murder, unless Mathews could show prejudice from the admission of evidence on the felony-murder charge that would not have been admissible as to nonfelony murder, in which case he would be entitled to a new trial.

The Court of Appeals concluded that Mathews was not applicable to this case because the prisoner in Mathews had not completed his sentence for robbery prior to the resentencing for nonfelony murder, while here Thomas satisfied the attempted robbery sentence. 844 F.2d 1337, 1342 (CA8 1988). This distinction has no legal significance. Because nonfelony murder is not the same offense as attempted robbery, see, e.g., Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (defining "same offense"), there would be no double jeopardy bar to punishing Thomas for that offense, even through a second full trial. The rule of Morris v. Mathews merely allows entry of judgment without the need for a new trial where the jury's verdict of guilt as to felony murder in the first trial necessarily included a determination that the defendant committed nonfelony murder. Under the Missouri felony-murder statute that applied to Thomas, the jury did make this determination, and there is no reason that Mathews could not have applied here if the state court had chosen that course.